I am a senior editor at Forbes, covering legal affairs, corporate finance, macroeconomics and the occasional sailing story. I was the Southwest Bureau manager for Forbes in Houston from 1999 to 2003, when I returned home to Connecticut for a Knight fellowship at Yale Law School. Before that I worked for Bloomberg Business News in Houston and the late, great Dallas Times Herald and Houston Post. While I am a Chartered Financial Analyst and have a year of law school under my belt, most of what I know about financial journalism, I learned in Texas.

Supreme Court Unlikely To Deliver Gay-Marriage Mandate

The U.S. Supreme Court has agreed to hear a pair of cases that could — but likely will not — establish a nationwide, constitutional right to gay marriage. The cases leave the high court plenty of escape hatches from taking a big step the country may not be ready for yet, said William Eskridge, a constitutional law scholar at Yale Law School who contributed the legal reasoning that helped decide one of the cases, a challenge to an anti-gay marriage referendum in California.

The Supreme Court agreed to hear Hollingsworth v. Perry, the California case, as well as U.S. v. Windsor, a challenge to the federal Defense of Marriage Act. Both go to the core of one of the most divisive issues in American politics, the equivalent of interracial marriages in the 1950s. Very few people today would seriously support legal restrictions on a marriage between a white man and a black woman, but it wasn’t until the high court’s 1967 decision in Loving v. Virginiathat such laws were declared unconstitutional nationwide. Eskridge, whose scholarship has focused on how the Supreme Court adapts to mass political movements, thinks the country hasn’t yet reached a similar consensus on gay marriage.

“The Supreme Court would not have decided Loving in the 1950s,” he told me. “I would be very surprised if the court issues an opinion that spells the doom” of anti-gay marriage laws.

This may seem strange coming from the man who has supplied much of the legal reasoning undergirding the decisions that have supported gay rights, including 2003′s Lawrence v. Texas, invalidating state anti-sodomy statutes. But Eskridge teaches his students — I was one of them a decade ago — that the court responds slowly to broad social movements that implicate changes in civil rights. Only after Thurgood Marshall and his colleagues had pursued and won lawsuits challenging “separate but equal” school facilities in courts across the country was the Supreme Court willing to take the momentous step of declaring school segregation to be unconstitutional in Brown vs. Board of Educationin 1954. It took many years more for lower courts to enforce its provisions.

We’re at a similar point in the evolution of public thinking about gay marriage, Eskridge said. He described a recent luncheon meeting he attended in St. Louis where he asked some members of the audience how Missourians would respond to a Supreme Court ruling subjecting gay-marriage bans to the nearly insurmountable constitutional standard of strict scrutiny. “The guns would come out,” one attendee told him.

In Hollingsworth, the court will review a Ninth Circuit decision upholding a lower court’s invalidation of California’s Proposition 8 making same-sex marriages illegal. The lower court issued a broad ruling declaring the law, passed by statewide referendum, to be unconstitutional. The Ninth Circuit adopted Eskridge’s narrower reasoning that the referendum was invalid because it stripped a minority group — same-sex couples — of fundamental rights they had already possessed, albeit briefly, after some California cities started issuing marriage licenses.

The Supreme Court gave itself one out by asking lawyers to decide the question of Article III standing, or whether the plaintiffs challenging the Ninth Circuit even had the right to appeal. The plaintiffs are supporters of Prop. 8 but defenders of the ruling can argue they didn’t have a direct stake in the outcome and therefore can’t sue. If the court accepts that argument, it may send the case back to the district court for review and an uncertain future because the original court ruling technically only prevented certain state and local officials from enforcing Prop. 8. The high court also could agree with the Ninth Circuit’s reasoning — meaning only same-sex couples in California would maintain the right to marry.

In the DOMA case, the court also has asked both sides to answer the standing question. The Obama administration has refused to enforce the law, so there is a legal question whether having won a lower-court ruling declaring DOMA unconstitutional, it has standing to pursue an appeal. House Republicans, who are suing to overturn the lower court decision, would be subject to the same question.

As Lyle Denniston wrote on Scotusblog: “If the Court were to rule that the Court lacks jurisdiction, after finding that the Administration is not a proper one to appeal a ruling that it had won, that presumably would end that case.”

The liberal minority on the court may vote in favor of broad constitutional protection for same-sex couples, and Justice Anthony Kennedy may even join them. But Eskridge thinks the time isn’t right yet. While “there is a distinguished tradition” on the Court of overturning popular referendums that are discriminatory — including Romer v. Evans, in which Kennedy voted with the majority to strike down a Colorado state constitutional amendment prohibiting gay-rights laws — the court can also use these cases to delay a final decision on the constitutionality of gay marriage. Even Justice Ruth Bader Ginsburg has repeatedly stated that Roe v. Wade, the 1973 decision legalizing abortion, was decided too early.

“Justice Ginsburg built an entire career around going slowly on women’s rights,” said Eskridge.

On one question that has puzzled me, Eskridge had a direct and nearly irrefutable answer. What’s the big deal, I asked, about whether same-sex couples have the word “marriage” on a certificate if they can obtain civil unions that are identical in every other way? “Let’s engage in a thought experiment about Loving v. Virginia,” he said. “What if the Supreme Court had invented a new form of marriage for people of different races?” The rights would be identical, he said, only the state would provide a different certificate for white couples than it issued for couples of mixed races. The idea seems ridiculous now. Some day, perhaps, the same thinking will apply to same-sex marriage. It will probably take years, and a lot more litigation, to get there.

Post Your Comment

Post Your Reply

Forbes writers have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You'll be notified if your comment is called out.

Comments

No… at the end of the article you said that ‘you’ were puzzled by this: “What’s the big deal, I asked, about whether same-sex couples have the word “marriage” on a certificate if they can obtain civil unions that are identical in every other way? ” You’re not reporting here – you don’t think ‘separate but equal’ is a big deal when it comes to the issue of marriage.

Also – Civil unions do nothing when it comes to DOMA, so, for example, civil unioned couples get hit with inheritance taxes whereas they wouldn’t if they were married; you can’t ‘civil union’ someone from overseas and they get residency rights, etc…

Being black, left-handed or being gay is just as natural. It is a sometimes rare occurrence to fall in Love and to hold that person in your heart and be loved in return … it is something that should be celebrated! If it’s between two guys or two girls — all the better. It takes even more courage to defend that LOVE!

The evil writings in Leviticus 18:22 … against gays – depict: “P” … “priestly rules” & expanded by the pope; homophobes and religious frauds … to attack the gay community and never meant to apply to the public — but to priests. Leviticus was written long after Moses — 600BC.

There is no scientific evidence to prove any of the cross related bogus elements of christianity and other religions. Our early human ancestors; on this earth … go back more than 6 million years … 5,996,000 years before the Greeks, Romans and the Jews. Christianity is basically a 2012 year old fictional cult. In the year 300 AD when Emperor Constantine, who to some was the first pope; went on to fabricate & market Christianity! Christianity is a fantasy; which turned out to be one of the most hateful & evil concoctions ever perpetrated on the world.

It is written; so therefore it shall be? We are the chosen people? Such a wicked fantasy. To see the religious lunatics manipulate government and our lives is shameful.

The pope and churches fully aware that Leviticus 18:22 applies to priests only … refuse to remove this stigma … maliciously persecuting gays. Kids are being bullied into suicide …!

“The guns would come out” if SCOTUS upholds the civil rights of a minority group? Are these opponents of equal marriage threatening to shoot Supreme Court judges or gay and lesbian couples? It is precisely the implied threat to civil society by the bigoted, anti-gay opponents of equal rights that should prove to any reasonable member of the court just precisely what motivates these people (hate) and what the LGBT community courageously confronts in trying to live our lives. If reason prevails, the Supreme Court will do the right thing and make marriage an option for all — straight or gay, Californian or Missourian. If they don’t, they will have caved to the violent and bigoted sentiments you can hear in that ridiculous statement. (That right-wing bigot might want to remember, though, that gays also have access to guns to protect our families and so might want to be careful about not making idle threats….)

“Let’s engage in a though experiment about Loving v. Virginia,” he said. “What if the Supreme Court had invented a new form of marriage for people of different races?”. Despite the typo (what is a “though” experiment), this is the real meat of the matter in my opinion. Separate is most definitely not equal and as a gay person Civil Unions are an absolutely humiliating acquiesces to the religious conservatives who who have bullied their doctrine into the constitutions of so many states. Equality for all is a pretty simple concept really; hopefully the justices will get this right.

Mr. Fisher, thank you for your thoughts. However, your “What’s the big deal” question and Mr. Eskridge’s response completely miss the mark. There is no way that a civil union can be identical “in every other way” because they do not afford gay couples any of the same rights of “married” couples under federal law due to DOMA: IRS – joint tax returns and the estate tax exclusion, SSA – survivor’s SS benefits, ICE – green cards for out-of-status partners, health insurance coverage for partners of federal employees – the list goes on. Only “marriage” affords these couples such federal rights, because the federal statutes are riddled with the word “spouse,” and you can only be a “spouse” if you are “married,” per DOMA. With all due respect, sir, that’s the “big deal.” However, I totally agree that the outcome will not “legalize” gay marriage in the United States, but instead the Supreme Court will use its “outs” for Prop 8 (gay Californians will have the right to marry again) and DOMA (gay couples married in States that allow gay marraige will get their federal benefits).